Transcripts
1. Course Introduction: Hi, my name is Sheila. Welcome to the course. If you are a writer, a blogger, and author of any
kind of material, then this is the contract
law course for you. Now, a lot of times we are so engrossed in
writing that article, writing that blog,
and we're excited about it and we want
to get it out there. Sometimes we're working with
other people and we don't necessarily have
the contracts in place that we need
to have in place. This particular course is
going to be a deep dive into contract law as it relates
to independent writing. For instance, if
you are a blogger, someone who's
writing on your own, we're going to delve deeply
into what a contract is. What are the criteria that you need to understand in order to be able to say, hey, yeah, this is a valid contract, then I'm going to do an
even deeper dive into provisions that really
matter for writers. Some of the things that you
don't even think about. Once we do that, we're going to hit on some of the boilerplate
provisions that you're used to hearing about
things like, okay. Well, what if I want
to amend the contract? Where is the governing law
and jurisdiction going to be? Which state is going to be. Those are provisions that you
see across in a contract, whether it's a writing contract or whether it's someone who is teaching someone
how to play the piano. Our focus here in this
particular course is to help you walk away with an understanding of what you need
to be looking for. If you are a writer, you're on your own and
you're trying to protect your interests when you're
working with someone else. This is a deep dark course. It's going to be heavy, heavy, heavy, heavy on the law. You may want to take some notes. I'm going to have
a lot of slides that are going to have quite a bit of
information on them. So you will have
an opportunity to read and listen
at the same time. Hopefully if you're
writing notes, a lot of that will stick. This course will be
available to you in the future so you can always
come back and review it. If you need to read
fresh urine notes. That's it. Go ahead and get started. Thanks for taking the course. Why me and my contract
law and why the writing. Well, first of all,
I am an attorney. I've been licensed for 20 years, which is a pretty long time. So I'm tons of
experience in working with artists of all kinds. People who are creative, people, who are business owners, entrepreneurs, people who have just gotten their feet
wet, just getting started. And those who have
been in business for a really long time and
are now saying, Hey, maybe I want to expand to some of these other
areas and think about how I want to
produce content and maybe writing is one of the
things that I wanted to do. So I've actually been working
with clients for 20 years, it's really long time. So I'm bringing a lot of
experience to the table. But not only am I coming with the perspective
of an attorney, I've also created
my own content. I've written lots of blog articles as an attorney
about legal topics, and I've written some fiction. So I have a really good idea
of what to keep in mind when I'm looking at how to
protect my writing interests, understanding the
representations and warranties that the parties are going to have
between each other, understanding what
compensation may look like, early termination
amendments, survival, all of those terms. Yeah. I've been down
that road before. So I'm going to be talking about the specifics of contract
law as it relates to writing with a heavy emphasis on the contract law
side of things. So it's a very heavy cores. Hope you're ready
to take some notes. Let's get started.
2. Indie Writer Course Disclaimer: Well, I am an attorney. I do need to provide a
disclaimer about the course. This course is provided as a resource to help indie writers understand some of
the contract issues they may encounter
when starting out. This course does not
constitute legal advice and is not intended to create an
attorney client relationship. Now, note that the information you're going to receive
in this course, it may change and it may be subject to exceptions
and qualifications. Therefore, you
should always seek the advice of an
attorney licensed in your state before relying on any information that may
impact your business. Now I've used my best efforts
to write this course, but I make no representations or warranties with respect
to the accuracy or completeness of
the contents of this course for your
particular circumstances. So be mindful it take notes, learn a lot, and
let's get started.
3. Trends in Writing: In this lecture, I want to
briefly talk about some of the trends that are going
on in the writing world. It used to be way back when, not that long ago, when everyone wanted to sign on with an agency or a
publishing company, they wanted to follow that traditional path when it came to figuring out what
their writing career was going to look like. But things have changed. There was a lot of
turmoil in the industry a few years back
where people said, hey, if I have a
publishing contract, does it also cover
e-book rights? That actually used
to be a question. It's not anymore. A lot has changed and people
will have navigated that. And now you see all of these things covered
in the contract. So whereas before e-books
weren't mentioned. Now, hey, e-books or mentioned
other derivative rights, worldwide rights, social media, all of these things that didn't use to get Taco talked about or considered are definitely on the table when it comes to
negotiating writing contracts. The other thing is, in addition to all of
those major changes, we've got social media now. So it's not just
about writing a book, it's also writing articles. It's writing content
for social media. So you have people now who have whole careers designed
around writing things that will do well in
terms of marketing for certain hashtags
and certain brands. So there's a whole new level of knowledge that
comes along with that. But at the same time, we've still got this
underlying concern about what the
contract looks like. What are the legal
implications of the responsibilities
between the parties? Then finally, the third sort
of trend that we're seeing is this movement
toward, in the writers, like I said before, it
used to be every body was interested in following that
traditional publishing pad, but not so much anymore. Now you have any and everybody doing their own thing
and they are taking it upon themselves to increase their professional and
personal development in the area of writing. So in addition to all of those people who
maybe went to school, went down a certain
professional pad and gathered
experience that way. We now have people like me
and you who are independent. So we're stepping up, creating our own
written content and then putting it out there
in the world to sell it, to share it, to give
it to other people, to maybe have education or be educated and
informed by it, or simply to be
entertained by it. There are lots of reasons
for people now moving into doing beyond the self-publishing that we use to
think about before, but being a true
independent writer. So those are some
of the nutrients that are going on
in the industry. And that's not going to change, that is going to
continue to explode. So it's going to be
helpful to you if you have a really good
understanding of how contract law fits in
with all of those.
4. General Concepts of Contract Law: Let's talk about some general
concept of contract law. In its simplest form, a contract may be thought of as an agreement or promise
between parties. Although many contracts
may be oral in nature, the law requires that
certain contracts, like the assignment of a
copyright, be in writing. People forget and meanings
change over time. Therefore, it's generally
preferred to capture the terms of an
agreement in writing, even if it's nothing more than captured on a
napkin or receipt, that happens to be
closest at hand. Contract law is based on the
following five concepts. In addition to some
other requirements. First of all, consideration, there must be an exchange of something of value in return for the promise or service of the other party member
to offer an acceptance, there must be an
offer to enter into the contract and an acceptance
of the contract terms. Three, legal purpose. The purpose of the
contract must be legal. For capable parties. The parties must not be minus, and they must be mentally capable of entering
into a contract. And five, mutual assent. The parties must actually
voluntarily agree to enter into the
contract and to be bound by the terms
of the contract. This is often referred to
as a meeting of the minds.
5. What Exactly are You Contracted to Do: Contrary to popular belief, there's no standard
contract that will provide
everything you need. There are traditional
publishing contracts that are typically used in
the industry and that there are contracts with
boilerplate provisions used by other independent
professionals such as bloggers, article writers,
and documentarian. These various agreements
and provisions are not necessarily
mutually exclusive. There are benefits to reviewing all of these and working with an attorney to decide what is best for your particular
circumstance. Let's talk about services
and the form of the work. The first question that
needs to be asked is, what is the work that
is being provided? The answer will
most likely include objective and
subjective information in order to try to nail down and understanding and also
allow for flexibility. The following questions provide
a great starting point. Is the word fiction or nonfiction, or
creative nonfiction? Is there unexpected word count? How is word count determined? Is there a page requirement? How is page count determined? What is the subject matter
or citations required? What format is required
for citations? Must it be original, non
unpublished material? What does non unpublished
material mean? Who is the target audience? Now let's talk
about performance, standards and obligations
to produce and deliver. One of the trickiest
provisions in a contract for writers is the performance
standards provision. How you determine whether your submission
will be accepted or deemed unaccepted will depend on the language in
this provision. The following examples discuss
performance standards, okay, Here's Example one. All of writers services shall be rendered promptly
in a diligent, conscientious, artistic
and efficient manner. And rider shall devote writers
entire time and attention and best talents and abilities to the
services to be rendered. Yeah, that's a lot. Example two, if the
contracting company, in its sole discretion, reasonably deems the writing
and or any other materials delivered by the writer to be unacceptable in
form and substance, then the contracting
company shall promptly advise the
rider by written notice. Example three, the work to be
performed by rider includes all services generally
performed by a writer in rhinos
usual line of business. Example for writer may select delivery of
submission in Word or other standard format that
writer determines will be suitable for the
contracting company. Okay, That's a lot. Now you understand
what I mean when I say sometimes there are terms in these provisions that are clear and direct and objective, and sometimes the
terms are subjected. So you want to pay
very close attention to all of these terms when you're reviewing
your contract.
6. Specific Contract Provisions for Writers: There are a number of
provisions that are usually covered in
writing contracts. Depending on the industry, there are often
additional provisions that relate to screenplays, television shows, and other
theatrical performances. They usually include
provisions about revisions, sequels, remakes, and
even mini-series. Now, in this course we're
only going to focus on those provisions
that would be of interest to the
generalist writer. And not necessarily terms
that would be outlined in the Writers Guild of America as theatrical in
television agreement. So let's go over a list of contract provisions that
would be covered in a typical generalist
writers agreement used by an independent writer. Let's start with exclusivity, where you might want
to talk about rights, the duration of the
rights granted, the extent of the
rights granted. Also warranties and
representations such as copyrights and credits. Then assignments, work
for hire language, publicity rights, and the use of someone's
name and likeness. Whether or not there's
an obligation to print. Here are some questions to
think about that might assist you in understanding your
contractual rights as a writer. Reviewing these questions
will also give you an opportunity to
sort of prepare for your consultation with
an attorney if you want to have that attorney review
or negotiate your contract, exclusivity, is the
material going to be for the exclusive use of the party
you're contracting with, or will you be able to use the writing for other purposes? If the material is
going to be for the exclusive use of the party
you're contracting with. How long does that
exclusivity last? Is a perpetual or is
there a time limit on it? Are you free to write for
other parties or engage in other activities or services while you're employed
under the agreement. Now, what about rights in the material that you
would like to reserve? What are the rights that
you are actually granting? Are you required to assign moral rights so that
they can make changes? What is the period
of time that's going to be covered by any
rights that are granted. Are there any provisions for reversion of rights
back to you in that contract or
the rights being granted worldwide and beyond. Do the rights being granted
include electronic formats? Do the rights being
graded include all formats and other formats not yet invented or the rights for onetime
or multiple uses. If the writer for multiple uses, how many uses are defined
in the agreement? Rights include re licensing, use of the material to other parties who aren't even
included in the contract. Due rights granted forbid you from creating derivative works. Do the rights granted allow the party to create
derivative works? Do the rights granted allow the material to be included
in collaborative work? Do the rights include any trademarks associated
with the material? Are you required to warrant that the material is original? Are you required to warrant
that the material does not infringe on the rights and
works of another party. Are you required to warrant
that the material will not violate the right of
privacy of another party? Are you required to warrant
that the material will not defame another party or
will not constitute libel. Are you required to
warrant that the material has not been
published previously? If so, does publishing includes self-publishing and what
formats are actually covered? Are you required to warrant that you are the owner
of the material? Are you required to
warrant that you wrote the material without
the assistance or participation
of another party. Are you required to assign your copyright to another party? Isn't a work for hire
clause in the contract. Will you receive a credit
for your written material? What language will
be used for credit? If the provision states, if a substantial amount of
writers work is incorporated, then credit will be given. How is substantial determined? Will credit be included with every printing of the material? Is the writer
required to maintain any professional membership as a condition for
receiving credit? Now, what happens if the
rider does not maintain professional membership as
required under the contract? Does the agreement
allow the party to assign the contract
to another party? If so, how long does
that assignment last? And if so, what terms are
included in that agreement? Does the contract contains
a work for hire clause? Does the work for
hire clause contains a provision providing for assignment in the event the clause is
legally ineffective, for what purposes will
the party use your name, likeness, bio, and other
likenesses of you? Do you have to give additional
consent for publicity? Use of your name or likeness? Will such publicity be deemed an endorsement of another
product or material? Does the party has a right to withhold publication
of the material? If the party does have a right to withhold
publication of the material, is there a deadline
for publication? Does the material revert back to the writer if the material
is not published? What are the
triggering events for reversion of rights
back to the writer? Does the writer have
a right to purchase the material in the event the
material is not published. These are a number of questions that'll help
you take a look at your contract and figure
out if you've covered many of the subjects and topics that are
going to come up. And that will help you
make sure that you have good communication between
you and the other party.
7. Introduction to Boilerplate Contract Provisions: In addition to those more
specific contract provisions that we just went over, there are also a number of general contract provisions that you're going to want
to be aware of. You want to familiarize yourself with these and maybe even have an attorney review these
also so that you can see how appropriate they
are in your jurisdiction. Alright, general
contract provisions. Let me go down the
list first and then we will break them up. Arbitration,
attorney's fees, force mature governing law and
jurisdiction, headings. Indemnification, merger, also
known as entire agreement, modification, no
assignment, no waiver. Notice, photography and
videography releases, publicity rights, separability,
survival, termination. Alright, let's now jump into some examples of these
general contract provisions.
8. Boilerplate Provisions: Now, in the introductory
lecture to this section, you've heard me read through
a whole bunch of topics. These topics are general provisions or
boilerplate provisions, and we see them in just about
every contract out there. As you get used to
reviewing contracts, you'll find that, hey, you start to sound a little bit like an attorney
because you read through some of these
provisions so many times you've seen all sorts of iterations
on the same theme. So you will find that your
own knowledge increases. That's a benefit to you. But let's go ahead and jump into some of these
boilerplate provisions. I'm gonna go through them so that you can
see them and read along as I talk a
little bit about them. First step is arbitration, where a little bit familiar
now with arbitration, this is just an alternative
way of settling disputes. So instead of running
into court and saying I'm going to
sue the other party, and this is what I want. Usually it's handled
with an arbitrator. Both parties can decide on that. There may be actually a
process that's written into the contract that says how the arbitrator is
going to be picked. There also may be information in the contract about what
process is going to be used. So you can take a look at the arbitration information
that you see here. It can be very lengthy. You see here it can
apply to any controversy or claims arising out
of this agreement. You can see what I
mean by this being just a general clause that
would work in any contract, there's nothing
specific about writers. Next up, let's talk
about attorney's fees. Now, usually the
underlying rule is that, Hey, everybody pays their
own attorney's fees. The thing about it though is having to sue someone
for something. Why should I have to
even hire an attorney? So sometimes you'll see language
in there that says, Hey, the winning party gets their
attorney's fees paid for. But in most cases
it's going to be either party will pay
their own attorney's fees. But again, take a look at the
clause, see what it says, figure out whether or
not it needs to be changed for your
particular circumstance, then we have forced
mature, okay, we should all be familiar with this by now because
of the pandemic. This is the case in which, hey, there's usually something going on outside of our control. We have no control over it. Other things are happening. What we wanna do is grant
the parties some grace here so that there's some
time for either one to say, Hey, I just need a little
bit more time here. Once that time is given, I should be able to
perform whatever my responsibilities were
under the contract. Everything law and
jurisdiction, very simple. Usually just saying which
states laws are going to apply. The headings language
is just letting us know the headings are
just for convenience. There's not any
legal significance that attaches to the headings. It's just to help us keep
up with where we are, where we are in the contract. Indemnification can
be a really big deal, actually, is a really big deal. A lot of times what
you're looking for is something that says, Hey, the indemnification is
reciprocal or mutual meeting, both parties are protected. One of the things you want to be careful of is if
somebody gives you a contract and they are the
only party that's protected, what you want is
language that says, hey, if I'm negligent, I'm
responsible for it. If you're negligent,
you're responsible for it. That's called mutual
indemnification, merger and entire agreement
simply means that, hey, what you see on paper
in this agreement, is it, that is it. There is nothing else. So I always tell
people if somebody tells you something prior
to signing the agreement, they make an oral statement
and they say, Hey, we're actually going to give
you a bonus if you sell this many copies of your
article or whatever. But when you get the written contract
that's not in there, then that's not in there. It's gonna be hard
for you to come back six months later and
say, where's my bonus? And the other person
was going to say, no, remember we decided
not to put that in there. We weren't going to do
that and you're going to say no, we didn't. Well, that person is
going to say, well, there's an entire agreement
provision in here that says, the only things
that really matter are the things that are in
this written agreement. So be careful if somebody
tells you something, but they don't put it in
that final agreement, that would be a concern. Modifications and
amendments usually you just want to have some
language in here that says something like, Hey, there's no modification or amendment unless
it's in writing, signed by both parties. Very simple Assignment
tab to do with hey, whether or not I'm
going to let somebody else take care of my rights
and responsibilities for me. So usually you will
see language in there that says neither party can assign their rights or obligations without the
approval of the other party. Or sometimes it'll just say no, no assignment at all. So make sure you are
clear about what you want in your
agreement for waivers. I sometimes hear people say, Oh, I know that I was supposed
to pay by the fifth, but in the past you let
me pay by the 10th. And so you can't
come back now and say that I have to go
back to the fifth. Well, if I was in the agreement, then you're stuck with it. Just because I waved it before. I don't have to
continue to waive it. The agreement still matters. The agreement dictates the rules and responsibilities
between the parties. Even if our wave at once, that doesn't mean I have
waived it for every time. So that's a no waiver
publicity rights. Okay. So who gets to take
advantage of the name? That is what this is about. We've we get used to hearing right of privacy
and that's keeping things quiet or
confidential that are of a personal or
confidential nature. Whereas publicity
rights has to do with taking advantage of my reputation and goodwill so that somebody can commercialize it and make money off of it. So you want to be
really clear about publicity rights when it comes
to your writing contracts, the separability has
to do with, hey, sometimes laws change, things happen and things
that may have been legal or a valid before no
longer are a court may pass. I don't know, some new law. There may be some
new legislation, something changes and
you can no longer have a certain provision
in your contract. Separability says, Hey, we're
just going to cut that out, and then we're just
going to do the rest of the contract as is to
the extent that we can. Now sometimes there are different variations
on this theme. But generally, most of the time, that's what you
see in a contract. This survival clause
really is just about reminding you any event
this contract ends. There are some things that
survive versus one of the key clauses that you're used to seeing
as confidentiality. So if it was confidential before and during the
contract, guess what? I'm expecting you to keep it confidential even
after we're done. Termination is always a big one. Usually, I see this less in contracts and I think there
needs to be more of it. Parties are great and they're happy and excited about
jumping into a contract. They never stopped
to think, well, how does this business divorce in what happens if I
need to get out early? Is there some sort of
early termination fee? These are the things
that you want to think about and make sure that they're adequately
described in the contract. In the event that you
need to terminate. What are the circumstances of automatic termination and what are the circumstances
where it Hey, something happened and
now I need to leave or both parties just agree
to terminate early. All of those things can
be in this section. That's it. That's what you're used
to seeing in terms of boilerplate provisions
in any given contract.
9. Additional Writing Services to Consider: Let's talk about some
additional writing services. As you build your
writing career, you may find that there are other writing
related services or products you would like
to provide to others. Okay, So let's go down
a list of examples, writing classes, how to
writing guides and handbooks, editing and
copywriting services, ghost writing services,
writing contests, writing camps for youth. For each of these,
you'll likely need additional specific
provisions that take into account the exact services
that you're providing. One of the best ways to capture these services isn't a scope of services as
section, for example, you may want to discuss
the number of words you'll provide if you're ghostwriting or if you're writing
a book or guide. Additionally,
you'll want to make sure that you protect your time, agree to a certain number
of edits that you make. You could provide
it to free edits. And then after that, you could charge a flat fee for any additional edits that
aren't mistakes that you made. If you're going to be
teaching writing classes, be specific about how
many classes there are, whether there are refunds, whether the classes can be
transferred to someone else, and what items the students
should come to class width. As always, make certain that you follow up with your attorney and insurance agent when you add additional services to
your business model, this can act as a supplement
to a well-written contract. Now, remember, a
contract will never cover everything
that will come up. But a well-written
contract that communicates the understandings and the
expectations of the parties. Well, it'll make it less likely that you'll
run into issues.
10. The Wrap Up: Thank you for taking the course. I hope you got a lot out of it. I hope you took a
lot of notes and that you learned a lot that can benefit you as you continue on this path of
being an independent writer. If you have any questions, any concerns, any thoughts, any extra lectures
that you would like to see me add
to this course, then definitely let me
know and best wishes, good luck to you as you continue your independent writing career.
Shelia Huggins, Lifestyle & Business
